- Monday, July 2, 2012
By The Reverend Canon Professor Christopher Seitz , the Reverend Dr. Philip Turner , the Reverend Dr. Ephraim Radner , and Mark McCall, Esq.
This weekend’s news that Title IV “complaints” have been lodged against nine bishops brings together two matters that have long concerned ACI. The first is the polity of The Episcopal Church. For several years ACI has advocated the same understanding of TEC governance as the accused bishops. Indeed, the three ACI clergy submitted the same affidavits as did the bishops in Quincy and signed the same amicus brief as did the bishops in Texas. In addition, since Title IV was revised three years ago, ACI has been in the forefront of those arguing that the revised title is unconstitutional, unwise and unworkable. The sequence of events of the last few days leaves little doubt that these two issues of polity and Title IV were coordinated to coincide with the General Convention that begins this week. It is clear that the Title IV process is being used as a means to enforce a uniformity of thinking on polity that was inconceivable a generation ago. Less clear is whether differences of opinion over polity will be used as an excuse to preserve Title IV overreaches from corrective amendment.
We summarize below the factual background to the complaints against the nine bishops and conclude that the complaints are patently frivolous and should be dismissed at the outset. We then summarize our broader concerns about Title IV and suggest a way forward for this General Convention. Finally, we conclude with our hope that this coordinated abuse of the disciplinary process will not succeed in exacting a mindless uniformity on polity questions simply to promote the litigation tactics of the moment.
Background to the Quincy and Fort Worth Complaints
In April 2009 fifteen bishops and the three principal clergy at ACI (Seitz, Turner and Radner) signed an analysis of TEC polity published by ACI entitled “Bishops’ Statement on the Polity of the Episcopal Church.” Briefly summarized, this statement maintains that TEC was formed as a voluntary association of dioceses, that the diocesan bishop acting in accordance with the diocesan constitution and canons is the Ecclesiastical Authority in the diocese, and that TEC’s Constitution specifies no central metropolitical office or body with legal supremacy over the diocesan bishop or to which the bishop pledges obedience. The bishops and ACI clergy published this statement because this is what they were taught about TEC governance only a generation ago and they were concerned that temporary litigation objectives were permitting TEC’s constitutional polity of two hundred years to be transformed.
Many in the church fail to comprehend the legitimacy of the bishops’ claim that they are defending the traditional polity of TEC. But consider three authorities whose works were standard texts when today’s senior clergy were trained. First, in 1961 Canon Powel Dawley in the volume on polity in the official and widely-distributed series, “The Church’s Teaching,” summarized the role of the diocese as follows:
At the time that the American Revolution forced an independent organization upon the Anglican colonial parishes, the first dioceses existed separately from each other before they agreed to the union in 1789 into a national church. That union, like the original federation of our states, was one in which each diocese retained a large amount of autonomy, and still today the dioceses possess an independence far greater than that characteristic of most other Churches with episcopal polity….Diocesan participation in any national program or effort, for example, must be voluntarily given; it cannot be forced. Again, while the bishop’s exercise of independent power within the diocese is restricted by the share in church government possessed by the Diocesan Convention or the Standing Committee, his independence in respect to the rest of the Church is almost complete.
Second, in his widely used 1965 canon law handbook Daniel Stevick, a long-time faculty member at the Episcopal Divinity School and its predecessor, relied on Dawley and concluded:
The Episcopal Church is not, strictly speaking, a single jurisdiction. A diocese is free to accept or reject or qualify its national responsibilities….Work done, programs initiated, or social witness borne by departments of the Executive Council acting under general mandate of [General] Convention can be ignored or repudiated….[A]t present, diocesan support of the work of the national church is voluntary; commitment can be withheld. An entire group can, in effect, contract out of responsible participation in the life of the larger body.
Finally, the pre-existence of separate independent dioceses is also recognized in the current edition of White & Dykman, the official commentary on TEC’s constitution and canons: “Before their adherence to the Constitution united the Churches in the several states into a national body, each was completely independent.” White & Dykman describe the national body they created as “a federation of equal and independent Churches in the several states.”
The point of including these authorities here is not to recapitulate the polity analysis but only to show that the views expressed by the accused bishops has long been the mainstream understanding of TEC polity. Significantly, witnesses on behalf of TEC are now testifying under oath in courts around the country that these propositions are false.
At no time since the Bishops’ Statement was published in 2009 has any Title IV complaint been made that holding or publishing these views is a canonical violation.
In 2011, several bishops and the four of us at ACI were asked to submit affidavit testimony in the Quincy litigation. The three bishops and the ACI clergy submitted short affidavits testifying that they had signed the 2009 Bishops’ Statement and believed it to be true. (McCall submitted a different one page affidavit authenticating two articles he had published on this subject.) It is important to note that this was not legal argumentation, but testimony given under oath. Witnesses are not asked to take a position on the issues in the lawsuit; they are simply expected to testify truthfully under penalty of perjury. It is the civic duty of citizens to testify truthfully when required; it is common knowledge that those with relevant information can be subpoenaed and required to testify. That did not happen in Quincy; we gave testimony voluntarily. But the larger point is that testifying truthfully is not optional — it is a requirement of our legal system.
In late 2011 the court, relying in part on the affidavit testimony, denied TEC’s motion for summary judgment. It is important to emphasize that the Title IV complaint alleging a canonical violation was not filed against the fifteen bishops who signed the Bishops’ Statement in 2009, but only against the three who testified truthfully in 2011 that they believed it to be true. And it was not filed against these bishops in 2011 when they testified, but only a year later and after the summary judgment motion was lost. The conclusion is inescapable: the gravamen of the alleged canonical violation is not holding or expressing an opinion about polity but testifying truthfully (and persuasively) under oath in court.
This complaint is patently frivolous and should be dismissed at once not coordinated with other maneuvers for purposes of General Convention.
In the Fort Worth litigation, the trial court issued a decision that in the opinion of those who hold to the traditional understanding of TEC polity — as articulated by Dawley, Stevick and the Bishops’ Statement — misconstrued and therefore transformed TEC governance. The appeal of that decision is now before the Texas Supreme Court. Seven of the accused bishops joined ACI and the ACI clergy in submitting an amicus curiae brief to the court stating their view that the trial court misunderstood TEC polity and reiterating opinions about that polity that they have long held and expressed. Most would probably say that this is what they were taught in seminary. Six of the seven signed or endorsed the Bishops’ Statement in 2009.
Contrary to the claims of the Fort Worth General Convention deputies, the brief does not address who owns the property or the issue of whether dioceses can leave. It explicitly limits its scope to the nature of hierarchical authority in TEC and an analysis of the First Amendment constraints that prohibit secular courts from becoming embroiled in questions of church doctrine or discipline. As we have emphasized above, the former is not novel within TEC; the latter is standard Supreme Court jurisprudence.
Again we note that no Title IV complaint was lodged against these bishops in 2009 when they published these opinions in the Bishops’ Statement. Nor can anyone contend that submitting an amicus brief is a canonical offense; other TEC bishops have submitted a different amicus brief to the Texas Supreme Court this year expressing different opinions. Have we come to the point that amicus briefs expressing approved opinions get a nihil obstat but others, no matter how ancient and venerable their pedigree, are met with canonical reprisal? If so, our point that TEC’s polity is being transformed through secular litigation is proved beyond doubt.
The complaint against the seven bishops is also patently frivolous and should be dismissed at once.
Title IV: Our Concerns
This brings us to the new Title IV under which the complaints against the nine bishops will be considered. Like many others, ACI has long been concerned about the Title IV revisions. We first raised our concerns about the constitutionality of the new canons in a memorandum circulated privately in 2009 just after the revisions were passed. This eventually made its way to those responsible for drafting and implementing the new canon, who later replied — unsatisfactorily from our perspective. Later, beginning in September 2010, we published a series of articles addressing Title IV issues more comprehensively. We also summarized our concerns when we were interviewed in early 2011 as part of an investigation conducted by the House of Bishops.
These concerns fall into three categories:
- The revisions purport to give unconstitutional metropolitical authority to the Presiding Bishop, giving that office precisely the same authority over other bishops that diocesan bishops have over their clergy. Not only is there no constitutional basis for this unprecedented step, this approach is fundamentally incompatible with the ordination vows of the different orders of clergy: priests and deacons pledge obedience to their diocesan bishops, but bishops’ vows contain no such promise of obedience to any other office or body. The new Title IV thus subverts both the Constitution and the Ordinal in the Book of Common Prayer and re-defines the episcopal office.
- The revisions infringe on the exclusive constitutional authority given to dioceses for the trial of priests and deacons. Few things are as clear in TEC’s history as the fact that the Constitution allocates to the dioceses the authority for disciplining diocesan clergy. That clarity derives in no small measure from the fact that almost from its inception, TEC has had a vocal contingent of canonical experts who disagreed with this constitutional allocation of authority and who made sustained efforts to change it. All of these efforts were unsuccessful, and their repeated failure only serves to underscore that the constitutional authority for clergy discipline very intentionally rests with the dioceses. (To those readers skeptical of this conclusion: please read the article linked below, “Title IV and the Constitution”; the conclusion is irrefutable.)
- The revisions deny accused clergy due process protections widely seen as essential to fair trials. The definitions of offenses, the procedures for initiating and conducting proceedings and the standards for interim disciplinary measures are vague and overbroad and have already led to numerous and frivolous proceedings, inexplicable inconsistencies and arbitrary applications of discipline. Unlike professional disciplinary matters in other professions in which egregious lapses in due process can be remedied by judicial review, church discipline cases will not be reviewed by the courts due to First Amendment constraints. The only due process accused clergy will get is that specified in the church disciplinary code.
We are not alone in having profound concerns with Title IV. From across the theological spectrum, Michael Rehill, a lawyer from Newark whose perspective is primarily that of defending clergy charged with canonical offenses, concludes that the revised canon “stripped Members of the Clergy of fundamental due process rights which under the predecessors to Title IV were intended to provide Clergy facing ecclesiastical discipline with a fair process and a fair trial.” We obviously share this conclusion as well as with his observation that:
As a result of the new Title IV, many more Members of the Clergy are now facing ecclesiastical discipline, and our experience over the past year has brought to light many fundamental flaws in Title IV as it is presently constituted.
As of yesterday, nine more bishops are now facing this prospect, joining what we understand to be numerous others. Mr. Rehill has concluded that “a comprehensive revision of Title IV” is required. We agree with his conclusion, if not his proposed revision.
Where Do We Go from Here?
With General Convention beginning next week, nothing we have seen suggests that these problems with the new Title IV will be fixed. The Standing Commission on Constitution and Canons has proposed only four minor changes to Title IV that it regards as “nonsubstantive changes for clarity and consistency.” Its Blue Book report notes that it has reviewed the concerns raised by ACI and others but views these issues as “outside the scope of [the SCCC’s] mandate.”
As noted another proposal for revising Title IV has been offered by Mr. Rehill. We agree with some of his proposed changes, such as his proposal to reinstate the right against self-incrimination. On the whole, however, we do not think the Rehill proposal is adequate. Although extensive, his suggestions are not in fact the “comprehensive revision” that is required.
First, it does not address any of the constitutional questions we have raised. Indeed, it exacerbates the constitutional problems by attempting to restrict even further the authority of dioceses over clergy discipline. Given Mr. Rehill’s dire assessment of the current situation — which we share — it is imperative that dioceses exercise their constitutional authority to adapt the new structures and provisions to the needs of their dioceses and experiment with ways the process can be made workable and fair.
Second, the Rehill proposal would make structural changes to the disciplinary process that would place important functions outside the authority of diocesan governance. Under his proposal, the accountability, both canonically and financially, of the Intake Officer, Church Attorney and investigators to established diocesan authorities, including the bishop and standing committee, is unclear at best and non-existent at worst. Nor is it at all clear how the changes Mr. Rehill proposes to the intake process for clergy will fit with the process for bishops, which is derivative of the one for other clergy under the new Title IV.
In short, we are on the eve of General Convention without any adequate proposal to remedy the fundamental flaws in the current Title IV. And it is inconceivable that last minute suggestions can be properly considered and vetted for constitutionality, fairness and coherence in the limited time available during General Convention. Accordingly, we believe the best result that can come from this General Convention is the following:
- Recognition by the Convention that the new Title IV is fundamentally flawed and requires comprehensive revision together with a request that a proposal for such a revision be prepared for consideration by the next General Convention.
- Recognition that dioceses will use their constitutional authority to adapt the provisions of the revised Title IV to make them fairer and more efficient and that these adaptations can provide a source of possible solutions to the problems with Title IV.
- Recognition that some of the authority purportedly given to the Presiding Bishop under the current canon is not constitutional accompanied by a request that she refrain from exercising this disputed authority pending revisions to Title IV.
Full Circle: Title IV, Polity and General Convention
In cannot be coincidence that on the same day — the last Friday before General Convention meets — notice was served about the Quincy complaint, notice was served about the Fort Worth complaint and the Fort Worth General Convention deputation circulated a letter to other deputies asking that bishops-elect be interrogated as to their interpretation of TEC polity before consents are given. The conclusion is inescapable that abuse of the Title IV process is being coordinated with the anomaly of General Convention consents to promote a rigid uniformity of opinion on controversial issues of polity. Those who adhere to the views expressed in one Texas amicus brief are to be welcomed; those who share the views of the other amicus brief are to be blacklisted. We appear to have reached the point where Messrs. White, Dykman, Dawley and Stevick — if they were alive today — would be banished from the church were they to testify truthfully that they believed what they wrote — and the point where the abuse of canonical disciplinary processes is thought to be an acceptable tactic to obtain political and secular legal objectives. Our hope for TEC and those at this General Convention is that they will resist this creeping totalitarianism, dismiss these frivolous complaints, reconsider the ill-advised Title IV revisions and start to restore some health and dignity to our canonical processes.
ACI (with Alan Runyan): Title IV Revisions Unmasked
Michael Rehill: Proposed Amendments to Title IV